First Amendment Claim in Cockfight Suit

A company that broadcasts cockfights on the Internet filed suit in federal court in Miami on Tuesday to challenge a largely untested federal law that makes it a crime to sell depictions of animal cruelty.

Cockfighting is illegal in 49 states, and last month the Legislature in Louisiana, where the practice is still allowed, passed a bill that would outlaw it there next year. Animal protection advocates call the practice barbaric and cruel.

But the question of whether the First Amendment allows the government to ban depictions of illegal conduct, as opposed to the conduct itself, is a difficult one, legal experts said. In the Florida suit, moreover, the company says it broadcasts cockfights from Puerto Rico, where they are legal.

“We believe firmly that broadcasting and selling legal cockfighting over the Internet is not a crime,” said David O. Markus, a lawyer for the company, Advanced Consulting and Marketing, which runs the sitewww.toughsportslive.com. “As bullfighting is part of Spanish culture and as violent human fighting is part of our culture, cockfighting is part of Puerto Rican culture.”

Charles Miller, a Justice Department spokesman, declined to comment on the suit.

The constitutionality of the same law is at issue in a case before the federal appeals court in Philadelphia, in which a Virginia man was sentenced to three years in prison for selling videotapes of dog fights.

The law, enacted in 1999 and signed into law by President Bill Clinton, makes it a crime to sell depictions of animal cruelty for commercial gain. There is an exception for works of “serious religious, political, scientific, educational, journalistic, historical or artistic value.”

The cockfighting Web site, which calls itself “the #1 rooster fighting network in the world” and sells package deals that also allow subscribers to see women in bikinis shooting large guns, seems unlikely to qualify.

The law was enacted in response to so-called “crush videos,” in which, according its legislative history, women “talking to the animals in a kind of dominatrix patter” crushed them “with their bare feet or while wearing high-heeled shoes.”

But the actual language of the law is much broader, forbidding depictions of “conduct in which a living animal is intentionally mutilated, maimed, tortured, wounded or killed.” The law makes it a crime to sell depictions of cruelty to animals whether or not it was legal where it happened so long as it was illegal where the depictions were sold.

President Clinton issued a statement when he signed the bill, saying he would instruct the Justice Department to construe the law narrowly, limiting it to “wanton cruelty to animals designed to appeal to a prurient interest in sex.”

That limitation has not been followed in the three prosecutions that have been brought under the law, according to a recent government brief. All three involved videotapes of dog fights.

“I think the statute is unconstitutional,” said Eugene Volokh, who teaches law at theUniversity of California in Los Angeles. “The speech does not fall into any existing First Amendment exception.”

In what is apparently the only decision so far on the constitutionality of the law, a federal trial judge in Pittsburgh, Alan N. Bloch, upheld it in an oral ruling in 2004 in the criminal prosecution of the Virginia man, Robert J. Stevens.

Mr. Stevens has appealed to the United States Court of Appeals for the Third Circuit, in Philadelphia, which is expected to rule soon. In an unusual move, the full appeals court decided to hear the case before a three-judge panel ruled.

Prosecutors in the case said the 1999 law was a constitutional abridgement of speech, similar to laws prohibiting obscenity, child pornography, incitement and fighting words. The law, their brief said, “prohibits a new class of speech, so lacking in value, that it should not receive First Amendment protection.”

Lawyers for Mr. Stevens argued that the 1999 law was so vague that it could apply to hunting and fishing. One of the tapes Mr. Stevens sold, they added, showed dog fighting in Japan, where they said the practice was legal.

“It is hard to imagine,” Mr. Stevens’s lawyers wrote, “how the punishment of depictions of conduct which occurred a long time ago, at a time when it was not even illegal, or in a country where it is not illegal, can prevent animal cruelty here and now, at a time and a place where it is illegal.”

Ricardo J. Bascuas, a law professor at the University of Miami and a lawyer for the Florida company, said nothing should turn on whether the conduct depicted was legal or not. “Any TV station that shows a 7-Eleven robbery video is showing illegal conduct,” Professor Bascuas said. “When you punish speech, you quell debate about matters of public controversy.”

The lawsuit is one of several on the subject recently. Last week, proponents of cockfighting filed suit in state court in New Mexico challenging that state’s new ban on the practice, saying that an 1848 treaty with Mexico protects it.

“There’s thousands of people being hurt,” said Ronald Barron, the president of the New Mexico Game Fowl Association, one of the plaintiffs in the suit. “It’s part of their culture, part of the way they were raised, part of their traditions.”

Phil Sisneros, a spokesman for New Mexico’s attorney general, Gary King, said, “We haven’t found a single argument they have that the attorney general thinks holds water.”

In a 2003 advisory letter, the attorney general’s office said the Treaty of Guadalupe Hidalgo, which ended the Mexican War in 1848, did not specifically address cockfighting as among the rights it meant to protect. In any event, the letter said, the state was free to outlaw the practice.